At the moment, the OSHA vaccination mandate for businesses with at least 100 employees is dead.
But a resuscitation could be just around the corner.
On Saturday, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement by the federal Occupational Safety and Health Administration that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.
But the Biden administration has said it’s confident that the requirement, which includes penalties of nearly $14,000 per violation, will withstand legal challenges in part because its safety rules preempt state laws.
Employers have peppered local labor attorney Keith Wilkes with inquiries since the Biden administration published the proposed mandate on Thursday.
His takeaway response — the Tulsa World spoke to him Friday, before the stay was issued — is pretty basic.
“Employers have a lot to do in a short amount of time to get in compliance with the new OSHA ETS (emergency temporary standard),” said Wilkes, a labor and employment partner/shareholder in Tulsa at the national law firm Hall Estill.
“However, once it’s up and running, the administration of it should not be too burdensome on employers, dependent on how many unvaccinated people are in their workplace, for whom they will have to monitor weekly testing.”
The U.S. Department of Labor’s Occupational Safety and Health Administration ETS is designed to protect more than 84 million workers from the spread of the coronavirus on the job.
Under it, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
The proposed order, which provides options for compliance, would require employers to provide paid time off to workers to get vaccinated and to recover from any side effects.
Workers would be able to ask for exemptions on religious or medical grounds, and they would have to pay for their own weekly testing. The requirements wouldn’t apply to people who work at home or outdoors.
The Tulsa World on Friday reached out to a number of companies, all of which either declined to comment or didn’t respond to a request to comment on the proposed mandate.
“Those people that are against vaccinations, if they are working exclusively from home or they are at a distance and not with any co-workers, they will not have to be vaccinated,” Wilkes said of the proposed ETS. “If, however, they need to come to the office every two weeks or once a week, then they will have to be vaccinated or have had a negative test — if the employer allows that option — within seven days prior to their showing up at the workplace.”
Jan. 4 is the date weekly testing compliance would begin for employers who choose to allow employees this option. Until then, however, and if the ETS stands up in court, covered employers have a lengthy list of legal requirements to accomplish and prepare for in the next four weeks, including the implementation of a mandatory mask policy for employees who aren’t fully vaccinated by Dec. 5.
“That will be interesting,” said Wilkes, who has more than 20 years’ experience as a labor and employment attorney. “People will know who’s vaccinated and who’s not in another 30-plus days for those employers who are covered and not mandating 100% vaccination.”
Other musts for employers include determining the vaccination status of each employee, obtaining acceptable proof of vaccination of those vaccinated, and maintaining records and a roster of vaccination status.
Regarding the 5th Circuit’s stay, the government was to provide an expedited reply to the motion for a permanent injunction Monday, followed by petitioners’ reply on Tuesday.